In Re: Application of Htc Corp. For Issuance of A Subpoena To Broadcom

February 21, 2013

IN RE: APPLICATION OF HTC CORP. FOR ISSUANCE OF A SUBPOENA TO BROADCOM CORP.

The opinion of the court was delivered by: Hon. Marc L. Goldman United States Magistrate Judge

Case No 8:12-cv-02113-DOC (MLGx)

STIPULATED PROTECTIVE ORDER

Petitioner HTC Corp. ("HTC"), is the plaintiff in two patent infringement actions now pending in Germany ("the German Actions") against Nokia Oyj and Nokia GmbH (together, "Nokia"). In the German Actions, HTC alleges that Nokia has infringed European patent EP 2073096 B1 ("the 096 Patent"), a patent relating to power management systems in electronic devices having telecommunication and wireless communication capabilities. Nokia's Lumia smartphones at issue contain a BCM4329 wireless connectivity chip, designed and supplied to Nokia by Non-Party Broadcom Corp. ("Broadcom"). Broadcom also produced driver code for the BCM4329, which it supplied to Nokia on or with the BCM4329.

Broadcom contends that the documents sought by HTC are highly confidential. That it "undertakes significant and continuous efforts to protect its confidential technical information from disclosure to competitors and the public." [Dkt. No. 15-1, p. 7.] And that this "technical information is the heart of Broadcom's business." [Id.] As a result, the parties believe that disclosure and discovery activity in this action are likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than the Foreign Litigation (defined below) may be warranted, and that good cause exists for entry of this Stipulated Protective Order.

In light of the foregoing, HTC and Broadcom wish to establish procedures to limit the necessity for objections and subsequent motions seeking discovery, and facilitate the disposition by the Court of disputes or problems that may arise in connection with discovery herein. HTC, and Broadcom, by and through their counsel of record, and pursuant to Rules 26(c) and 29(b) of the federal Rules of Civil Procedure and Local Rule 7-1, hereby agree and stipulate as follows:

A.Purposes and Limitations

HTC Corp. has submitted an application pursuant to 28 U.S.C. § 1782 seeking discovery of confidential and proprietary materials from Non-Party Broadcom Corp. for use in the Foreign Litigation (defined below) against Nokia. HTC, Nokia, and Broadcom hereby stipulate to and petition the court to enter the following Stipulated Protective Order to govern all Confidential Information (defined below) provided by Broadcom to HTC and Nokia. This stipulation is agreed to in light of HTC and Broadcom's separate negotiated agreement on the scope of materials to be produced-namely, certain relevant customer-facing documents accessible via Broadcom's docSAFE portal. This Stipulated Protective Order and Broadcom's stipulation to it should not be interpreted as Broadcom's general practice or satisfaction with these measures for the production of any confidential and proprietary materials under 28 U.S.C. § 1782.

B.Definitions

1. "Material": all information, documents, testimony, and things produced, served, or otherwise provided in this action for the Foreign Litigation.

2. "Confidential Information": information (regardless of how it is generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil Procedure 26(c).

5. "Party" means: with respect to HTC, HTC. Corp. and all of its officers, directors, employees, consultants, retained experts, and Outside Counsel of Record (and their support staffs); in addition to HTC, the term "Party" shall also include Nokia GmbH and Nokia Oyj ("collectively, "Nokia"), all of their officers, directors, employees, consultants, retained experts, and Outside Counsel of Record (and their support staffs), but only if Nokia returns an executed copy of Exhibit A to HTC and Non-Party Broadcom.

8. "Counsel of Record": attorneys for a Party who are not employees of a Party and that have executed Exhibit A and been retained to represent or advise a Party in the Foreign Litigation.

9. "Outside Consultant": a person with specialized knowledge or experience in a matter pertinent to the Foreign Litigation who has been retained by Counsel of Record to serve as an expert witness or a Foreign Litigation consultant in the Foreign Litigation (including any necessary support personnel of such person to whom disclosure is reasonably necessary for the Foreign Litigation), and who is not a current employee of a Party or of a competitor of a Party and who, at the time of retention, is not anticipated to become an employee of, or a non-litigation consultant of: (a) a Party, (b) a competitor of a Party, or (c) a competitor of Broadcom.

10. "Producing Party": a Party or Broadcom that produces Designated Broadcom Material.

11. "Receiving Party": a Party that receives Designated Broadcom Material in this action or the Foreign Litigation.

12. "Professional Vendors": persons or entities that provide Foreign Litigation support services (e.g., photocopying; videotaping; translating; designing and preparing exhibits, graphics, or demonstrations; organizing, storing, retrieving data in any form or medium; etc.) and their employees and subcontractors who have been retained or directed by Counsel of Record in the Foreign Litigation, and who are not current employees of a Party or of a competitor of a Party and who, at the time of retention, are not anticipated to become employees of: (a) a Party, (b) a competitor of a Party, or (c) a competitor of Broadcom. This definition includes ESI vendors retained in connection with the Foreign Litigation to assist a Party, Counsel of Record, or any Outside Consultant in their work. Professional vendors do not include consultants who fall within the definition of Outside Consultant.

C.Scope

13. A Party that produces Material that includes or describes Broadcom Confidential Information shall affix the legend "BROADCOM -- OUTSIDE ATTORNEYS' EYES ONLY" to each page of the Material. Producing Party shall designate Material that includes Broadcom Confidential Information as "BROADCOM -- OUTSIDE ATTORNEYS' EYES ONLY" by affixing a legend to the Material or by written notice to the Parties. A Receiving Party may use Designated Broadcom Materials only for prosecuting, defending, or attempting to settle the Foreign Litigation. Designated Broadcom Material may be disclosed only to the categories of persons and under the conditions described in this Order. When the Foreign Litigation has been terminated, a Receiving Party must comply with the provisions of Section L below (FINAL DISPOSITION).

14. The protections conferred by this Order cover not only Designated Broadcom Material (as defined above), but also any information copied or extracted therefrom, as well as all copies, excerpts, summaries, or compilations thereof. This Order shall not prevent a disclosure to ...

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